State ex rel. Stenberg v. Murphy

• Citation: 247 Neb. 358,527 N.W.2d 185
• Decision Date: 03 February 1995
• Docket Number: No. S-94-382,S-94-382
• Parties: STATE of Nebraska ex rel. Don STENBERG, Attorney General of the State of Nebraska, Relator, v. John P. MURPHY, Respondent.
• Court: Supreme Court of Nebraska

Page 185

527 N.W.2d 185

247 Neb. 358

STATE of Nebraska ex rel. Don STENBERG, Attorney General of the State of Nebraska, Relator, v. John P. MURPHY, Respondent.

No. S-94-382.

Supreme Court of Nebraska.

Feb. 3, 1995.

Syllabus by the Court

1. Quo Warranto. Quo warranto will not lie where there is another adequate remedy at law or equity.

2. Judgments. The language of a judicial opinion must be read in the context of facts under consideration and its meaning limited by those facts.

3. Collateral Attack. The proper method of questioning the validity of legislative action is by collateral attack, that is, by injunction, quo warranto, or other suitable equitable action.

4. Quo Warranto. Quo warranto is intended to prevent the exercise of powers that are not conferred by law.

5. Quo Warranto. Quo warranto lies to challenge the legal existence of a statutory position created by legislation, the constitutionality of which has been questioned, and to oust the incumbent of an unconstitutional office.

6. Parties: Pleadings: Words and Phrases. A necessary party is one who may be compelled to respond to the prayer of the plaintiff's petition, and where there is nothing such a one is called upon to do, or can be compelled to do as a duty, one is not a necessary party.

7. Constitutional Law. The purpose of the distribution of powers clause found in Neb. Const. art. II, § 1, is to establish the permanent framework of our system of government, to assign to the three departments their respective powers and duties, and to establish certain fixed principles upon which our government is to be conducted.

8. Constitutional Law. The distribution of powers clause found in Neb. Const. art. II, § 1, prohibits one department of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives.

9. Constitutional Law. The distribution of powers clause found in Neb. Const. art. II, § 1, prohibits one who exercises the powers of one department of government from being a member of the other departments.

10. Constitutional Law: Statutes. An unconstitutional statute is a nullity, void from its enactment, and is incapable of creating any rights or obligations.

11. Constitutional Law: Statutes. Constitutionally invalid legislation confers no rights; imposes no duties or obligations; and is, in legal contemplation, as inoperative as though it had never been composed or enacted.

12. Public Officers and Employees: Judges. A district court judge is a state officer who exercises the power of the judicial department of government.

13. Quo Warranto: Public Officers and Employees. For the purposes of quo warranto, a public office is a governmental position, the duties of which invest the incumbent with some aspect of the sovereign power.

14. Administrative Law. By empowering members of the Nebraska Commission on Law Enforcement and Criminal Justice to accept and administer funds and decide matters relating to the administration of criminal justice, Neb.Rev.Stat. § 81-1423 (Reissue 1987) invests members of the commission with aspects of the State's sovereign powers.

15. Administrative Law. Administrative agencies are not courts, even though they may be called such.

16. Administrative Law. As a general rule, administrative agencies have no general judicial powers, notwithstanding that they may perform some quasi-judicial duties.

17. Constitutional Law: Administrative Law: Legislature: Courts. Unless permitted by the Constitution, the Legislature may not authorize administrative officers or bodies to exercise powers which are essentially judicial in nature or to interfere with the exercise of such powers by the court.

18. Administrative Law. An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.

19. Administrative Law. State agencies may perform functions of a judicial, quasi-judicial, or factfinding character; however, such agencies are extrajudicial bodies, not courts, judges, judicial bodies, or officers.

20. Administrative Law. The Nebraska Commission on Law Enforcement and Criminal Justice is an executive agency, and a member thereof is a member of the executive department of government.

21. Constitutional Law: Administrative Law: Judges. The provision of Neb.Rev.Stat. § 81-1417 (Reissue 1987) which requires that the membership of the Nebraska Commission on Law Enforcement and Criminal Justice include a district court judge violates the distribution of powers clause found in Neb. Const. art. II, § 1, and is thus void and unenforceable.

22. Constitutional Law: Administrative Law: Judges. A district court judge who serves as a member of the Nebraska Commission on Law Enforcement and Criminal Justice occupies an unconstitutional and thus a nonexisting commission office.

23. Constitutional Law: Administrative Law: Judges. The provision of Neb.Rev.Stat. § 81-1417 (Reissue 1987) which mandates that the Governor appoint a district court judge as a member of the Nebraska Commission on Law Enforcement and Criminal Justice violates the distribution of 24. Constitutional Law: Statutes. Constitutional language controls legislative language.

powers clause found in Neb. Const. art. II, § 1, and is thus void and unenforceable.

25. Constitutional Law: Statutes: Legislature: Intent. An unconstitutional portion of a statute may be severed if (1) absent the unconstitutional portion, a workable statutory scheme remains; (2) the valid portions of the statute can be enforced independently; (3) the invalid portion was not an inducement to the passage of the statute; and (4) severing the invalid portion will not do violence to the intent of the Legislature.

26. Constitutional Law: Statutes. A severability clause, while indicating that the Legislature contemplated the possible judicial partitioning of the statute and passed it anyway, is not necessary for severability.

27. Statutes. To the extent there is conflict between two statutes on some subject, the specific statute controls over the general statute.

Don Stenberg, Atty. Gen., L. Steven Grasz, and Dale A. Comer, Lincoln, for relator.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., Lincoln, for respondent.

HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

PER CURIAM.

The State, through its Attorney General, relator Don Stenberg, brought this original action in quo warranto to oust respondent, John P. Murphy, a duly qualified and acting judge of the district court, from membership on the Nebraska Commission on Law Enforcement and Criminal Justice. The State alleges that respondent's dual service as a judge and member of the commission violates the distribution of powers clause found in Neb. Const. art. II, § 1. Respondent has counterclaimed for an attorney fee and costs. For the reasons detailed hereinafter, we rule for the State on relator's pleading and for respondent on his counterclaim.

BACKGROUND

The statutes governing the commission are found at Neb.Rev.Stat. §§ 81-1415 through 81-1429 (Reissue 1987 & Cum.Supp.1992). Section 81-1416 makes the commission "an agency of the state" and provides that "the exercise by the commission of the powers conferred by the provisions of sections 81-1415 to 81-1426 shall be deemed to be an essential governmental function of the state." Section 81-1417 requires that the commission consist of at least 17 members, comprised in part of specified officials and in part of designated categories of persons, including "a district court judge," and members of the public at large, to be appointed by the Governor.

Respondent, who became a district court judge in 1983, was first appointed to the commission in 1991 and was reappointed for a 6-year term beginning in January 1994.

APPROPRIATENESS OF REMEDY

Neb.Rev.Stat. § 25-21,121 (Reissue 1989) permits the filing of an action in quo warranto against, among others, "any person unlawfully holding or exercising any public office ... within this state...."

Nonetheless, observing that his membership on the commission is mandated by statute, respondent urges that quo warranto does not lie, as relator has an adequate remedy at law, namely, an action seeking to declare unconstitutional that portion of § 81-1417 which requires the membership of a district court judge on the commission.

It is true we have held that quo warranto will not lie where there is another adequate remedy at law or equity. State, ex rel. Johnson v. Consumers Public Power District, 143 Neb. 753, 10 N.W.2d 784 (1943). But if the legislative requirement that a district court judge be a member of the commission contravenes the Constitution, an action resulting in such a declaration alone would not provide a remedy for ousting one holding the position and exercising its powers. In contrast, a quo warranto action which contemplates the constitutional validity of the position and the ouster of one unconstitutionally In that regard, respondent calls our attention to the language in Stasch v. Weber, 188 Neb. 710, 715-16, 199 N.W.2d 391, 395 (1972), reading that the "legality of the official action or the constitutionality of the statutes under which the officer purports to act may not be litigated in a quo warranto action" and declaring that the only issue which may be litigated in a quo warranto action is the right to hold public office and that the action must be strictly confined to that issue. It is important to understand, however, that Stasch was resolved on the basis that the claimants failed to show they were properly elected to the offices they sought to occupy. It is axiomatic that the language of a judicial opinion must be read in the context of the facts under consideration and its meaning limited by those facts. Bradley v. Hopkins, 246 Neb. 646, 522 N.W.2d 394 (1994). Thus, the...